Betournay v. Benson Group Inc., 2016 HRTO 1108

Human Rights Tribunal of Ontario

B E T W E E N:

Lisa Betournay

Applicant

-and-

Benson Group Inc.

Respondent

INTERIM DECISION

Adjudicator: Jennifer Khurana

Date: August 19, 2016

Citation: 2016 HRTO 1108

Indexed as: Betournay v. Benson Group Inc.

WRITTEN SUBMISSIONS

Lisa Betournay, Applicant

Robert Coulombe, Counsel

Benson Group Inc., Respondent

Jacques Leduc, Counsel

1This matter is scheduled for a hearing in Ottawa on September 26, 2016.

2This Interim Decision determines the applicant’s request to amend the Application and the respondent’s request to adjourn the hearing scheduled for September 26, 2016.

Request to amend the Application

3The applicant filed a Request for an Order During Proceedings (“Request”), seeking to amend the remedy sought in her Application. The respondent has not filed a response to the Request and the time for doing so has passed.

4Rule 1.7 of the Tribunal’s Rules of Procedure states:

In order to provide for a fair, just and expedition resolution of any matter before it the Tribunal may:

c) allow any filing to be amended.

5In determining a request to amend a pleading, the Tribunal will consider a number of factors, including the stage at which the request to amend is made, the nature of the requested amendment, the conduct of the party seeking the amendment, the prejudice to the other party, and the impact on the course of the hearing. See Mancebo-Munoz v. NCO Financial Services Inc., 2013 HRTO 535; Dube v. Canadian Career College, 2008 HRTO 336; Wozenilek v. 7-Eleven Canada, 2009 HRTO 926.

6I have considered the factors above and grant the applicant’s request to amend the remedy sought in her Application. The respondent did not file a response to the Request. The Tribunal has regularly granted such requests in past decisions. See, for example, Marino v. Compuware Corporation of Canada, 2011 HRTO 1390 and Loney v. Combusco Enterprises, 2011 HRTO 1050.

7Granting the Request is not a determination by the Tribunal as to the merits of the allegations or the appropriateness of the remedies sought, and is without prejudice to any position the respondent may wish to take regarding the remedial issue at the hearing.

Adjournment

8The Registrar sent the parties a Notice of Hearing on June 1, 2016. The respondent’s legal representative requested the applicant’s consent to adjourn the hearing on July 7, 2016. According to the respondent, the applicant opposes the request.

9The respondent asks that the Tribunal adjourn the Application as his legal counsel has been subpoenaed to appear as a witness in a proceeding before the Superior Court of Justice. The respondent’s legal counsel also advises that some of the respondent’s witnesses may also be called as witnesses in that matter and may therefore be unavailable for the Tribunal hearing.

10The Tribunal has made it clear on numerous occasions that adjournments are not automatically granted. The Tribunal’s Practice Direction on Scheduling of Hearings and Mediations, Rescheduling Requests, and Requests for Adjournments reads as follows:

The HRTO discourages requests for adjournments outside the 14-day period to request rescheduling of a mediation or hearing, described above. Requests for adjournments, particularly at the last minute, are a significant impediment to fair and timely access to justice. Therefore, the HRTO will only grant adjournments in extraordinary circumstances such as illness of a party, witness or representative. Absent exceptional circumstances, the HRTO will not grant adjournments, even when all parties consent.

Where a party seeks to adjourn a previously scheduled mediation or hearing, they must contact the Registrar as soon as the need arises. They must contact the other parties to seek their consent, and to discuss alternative dates for the rescheduling of the mediation or hearing.

The party making the request should contact the Registrar and provide the exceptional circumstances supporting the request and any alternative agreed upon dates. Where the request is on short notice, the party must contact the Registrar by email or fax.

11In Vallentyne v. Royal Canadian Legion, 2009 HRTO 660 at para. 4, the Tribunal explained why, even when there is consent, an adjournment of a scheduled hearing will not be granted absent exceptional circumstances:

The Tribunal is committed to the fair, just and expeditious resolution of proceedings before it. It expects to receive thousands of applications each year. The Tribunal has a responsibility to ensure that public resources are used effectively to meet the demands of all parties before the Tribunal. Therefore, when an adjournment request is made, it is not only the interests of the parties to the particular proceeding must consider, but the fact that Tribunal time reserved for the resolution of those parties’ dispute will no longer be used. For that reason, among others, the Tribunal’s Information Bulletin on Scheduling of Hearings and Mediations, Rescheduling Requests and Requests for Adjournments indicates that even adjournment requests made on consent of the parties more than five [now fourteen] days after the hearing is scheduled may be denied. The Tribunal has balanced the interests of parties in having hearings scheduled according to their and counsel’s availability with these broader interests by requiring that a party advise within five [now fourteen] days that they are unavailable, and providing that requests for adjournment will not otherwise be granted, absent exceptional circumstances.

12On the basis of the information provided by the respondent, I do not find exceptional reasons to justify adjourning the hearing at this stage. The trial at which respondent counsel indicates he and the respondent witnesses may be required to testify commences the week of September 19 and is currently scheduled to end before the Tribunal’s hearing date. While respondent counsel indicates that there is a “real possibility” that the respondent’s witnesses may also be required to testify at the Superior Court proceeding, at this stage their unavailability has not been confirmed. I am not prepared to adjourn the hearing on the basis of these tentative plans.

13The parties are directed to attend the hearing on the date already specified by the Tribunal. The parties are also reminded of their disclosure obligations pursuant to Rules 16 and 17 of the Tribunal’s Rules of Procedure, as set out below.

Disclosure Obligations

14As the Tribunal notified the parties in the Notice of Hearing, under Rule 16 of the Tribunal’s Rules of Procedure, the parties were obliged to each send to the Tribunal a Statement of Delivery by June 22, 2016 confirming that they had sent a copy of all arguably relevant documents in their possession (except those that are privileged) to the other party. It is now long past this deadline and the respondent has not complied with this requirement.

15In addition, the Notice of Hearing advised the parties that under Tribunal Rules 16 and 17, the parties were obliged to provide the following by no later than August 12, 2016:

a. a list of the documents they intend to rely on at the hearing – to one another and to the Tribunal;

b. copies of each of these documents for the Tribunal; and

c. a list of the witnesses with witness statements setting out the intended evidence of each witness – to one another and to the Tribunal.

16As of the date of this Case Assessment Direction (“CAD”) the respondent has not confirmed delivery of all arguably relevant documents to the applicant, nor have the parties provided the Tribunal with the documents they intend to rely on at the hearing or filed witness statements.

17There are serious consequences for this case if the parties do not comply with their obligations under the Tribunal’s Rules, as set out below.

DIRECTIONS TO APPLICANT

18By no later than August 29, 2016, the applicant must deliver to the respondent and file with the Tribunal:

(1) the documents she intends to rely upon at the hearing,

(2) a list of her witnesses; and

(3) a brief statement describing what her witnesses will say when they testify.

19The applicant is reminded that she must also submit a witness statement for herself, assuming she intends to testify at the hearing. However, if the applicant only intends to testify about the facts already contained in the Application (and Reply, if any), it is sufficient for her to confirm this in writing by August 29, 2016.

20If the applicant has not complied with these directions by August 29, 2016, the Application may be dismissed as abandoned.

DIRECTIONS TO RESPONDENT

21By no later than August 29, 2016, the respondent must deliver to the applicant and file with the Tribunal:

(1) confirmation of delivery of its arguably relevant documents to the applicant;

(2) the documents it intends to rely upon at the hearing,

(3) a list of its witnesses; and

(4) a brief statement describing what its witnesses will say when they testify.

22If the respondent does not provide the above-noted materials by August 29, 2016, the Tribunal may take any or all of the steps set out in Rule 5 of the Tribunal’s Rules of Procedure, including not permitting the respondent to call any witnesses or present any documentary evidence at the hearing.

23The Tribunal’s Rules of Procedure are available at www.sjto.gov.on.ca/hrto/ under “Law, Rules, Decisions”.

24The parties may also benefit from reviewing the Tribunal’s “Guide to Preparing for a Hearing before the HRTO”, available at www.sjto.gov.on.ca/hrto/ under “Forms & Filing”.

ORDER

25The Tribunal orders:

a. The applicant’s request to amend the Application is granted;

b. The respondent’s Request to adjourn the hearing is denied and the hearing will proceed as scheduled on September 26, 2016; and

c. By no later than August 29, 2016 the respondent shall deliver to the applicant and file with the Tribunal its Form 23 Statement of Delivery; and

d. By no later than August 29, 2016 the parties shall deliver to each other and file with the Tribunal the documents listed at paragraph [15].